from the shameful dept

We've talked many times about how patents are often used as weapons to kill innovative startups that threaten legacy players. Ryan alerts us to a perfect example of this in practice. 1-800-CONTACTS, the giant online contact lens/glasses space, is trying to kill off an upstart innovative competitor called Ditto. And, no, this is not a case of Ditto copying something that 1-800-CONTACTS invented. The details are astounding. First of all, Ditto's main innovation is doing something that 1-800-CONTACTS does not do (though it has since announced plans to introduce something similar), which is to let buyers of glasses take a quick webcam video of their face, and then be able to see what they would look like in various pairs of glasses. That's pretty cool. The 15 person startup got some funding for this... and then promptly got sued by the bigger company. And 1-800-CONTACTS' actions in this case show that it set out, deliberately, to kill off this innovative startup:

It appears that 1-800-CONTACTS' CEO went onto Ditto's website the very day it launched, presumably to investigate the upstart competitor's new technology. Having seen Ditto's product, 1-800-CONTACTS then went out and purchased a patent from a defunct company that claims to cover selling eyeglasses over a network using a 3D model of a user's face.

But here's the thing: 1-800-CONTACTS does not appear at all interested in licensing the patent to Ditto. Rather, it seems determined to put Ditto out of business. Period. So it's suing Ditto in federal court in Utah, hundreds of miles from Ditto's headquarters in California.

Yes, you read that right. First, the CEO went and saw the site, then sought out and bought a patent that could be used against the company (in this case, US Patent 7,016,824), then brought suit in a very inconvenient jurisdiction and, finally, isn't even entertaining the idea of licensing the patent. And, of course, the patent itself seems highly dubious in quality. Ditto thinks it would win the lawsuit, but spending what little money it has on litigation will almost certainly kill the company anyway. Even if it wins, it will likely lose by using up its money not on innovating, not on delivering a great service to people who want it, but on fighting a bully.

The EFF is asking for help in finding prior art for this patent, via StackExchange's prior art section, in the hopes that the patent can be invalidated quickly. In the meantime, though, shame on 1-800-CONTACTS for being an anti-innovation legal bully. Of course, this isn't the first time we've written about 1-800-CONTACTS doing dubious things against competitors. In the past, it's sued competitors for keyword ads, despite having lost similar cases and despite buying keywords on competitors itself. It seems that the company is willing to use the legal system to crack down on competition whenever it can, which makes it seem like a company worth avoiding when looking for any kind of corrective lens solutions.

from the PR-takes-the-Fifth dept

The SimCity debacle that exploded all over the web in March has quietly faded into the background. EA's claims that the game was always meant to be a quasi-MMO and that servers were handling a majority of in-game calculations have become a lot less incendiary now that servers are handling the load competently. The outrage has faded, replaced with pockets of disgruntled users, most of whom are upset with advertising-as-DLC and major updates that make the experience worse.

Why did this fade so fast? One reason is the attention span of the web (heavily generalized, and I am including myself in this "web" group). With a million other things begging for attention, the flames sputter out and the pitchforks go dull. But there's more to this than the net's lack of focus. EA itself helped extinguish these fires by doing nothing more than shutting down its outgoing communication. John Walker at Rock, Paper, Shotgun dives into this "non-story" created by EA's PR team's decision to simply drop the discussion.

When RPS first broke the story [that servers weren't handling most of the calculations], only a few other gaming sites picked up on it. It was a big story, unquestionably, so why was it left alone by so many? That breaks down into two parts. Firstly, and most importantly, the story was based on an anonymous source. We of course know who the source is, and verified it until we were very comfortable running the story. But that wasn’t possible for other sites – they had the choice of running the story based on a “rumour” from RPS, or not at all. And that’s understandable – repeating rumours is often the gaming press at its worst, and with no means to verify our story, repeating it could have been risky. It could easily have led to legal threats being thrown all over. Which brings us to the second part – they needed some sort of confirmation, or at the very least a response, from EA to offer ‘balance’.

Not reporting the story couldn’t be immediately dismissed as capitulation, being in the pocket of EA, cowardliness, etc. (Not that it excludes it, of course.) What most sites would have done was immediately fire off an email to EA and Maxis asking for them to provide comment. We, of course, had done the same. And here’s where the power of silence played its first part.

EA and Maxis simply ignored all those emails. Sites may have received a, “We’re waiting for a response,” from their regional PRs, but that was it. And so if you’re running GamePow.com, and you’ve decided you can’t run RPS’s anonymously sourced story without giving EA a response, ta-da – no story on GamePow. And EA knows that.

EA's decision to go silent makes perfect sense. Anything it had said about SimCity's failings had been directly contradicted by players' experiences. Anything that wasn't instantly refuted by modders poking around in the code was couched in spectacularly clueless PR speak that gathered instant derision. At some point, EA wisely decided to cut its losses and simply freeze out the gaming press.

When RPS attempted to get a response from EA on its debunked claim that its servers were doing most the calculations, the freeze set in. On March 12th (the day the story ran), Maxis claimed a response would be arriving "shortly." Another non-response about the pending response arrived the next day. Walker and RPS didn't hear from anyone at Maxis for the next four days.

“No response was my fault not UK PR folks or Maxis. Not a PR tactic, just had to unwind the complex issues and gather right info”

Reynolds then tried to dodge making a statement by claiming EA didn't want to keep repeating the same information it had been handing out since last year's Game Development Conference (where it claimed the internet connection would only be needed to boot the game, at which point players could take their games offline). Walker pointed out that EA's story had actually changed several times since the GDC. At this point, the Maxis spokesman shut down communication, apologizing for the lack of response, but never actually bothering to respond.

EA/Maxis played it smart by simply refusing to comment on the stories. Once the (disastrous) PR efforts were shut down, all gaming sites could do was report their own observations without comment from the game's producers. Love or hate EA (most of us tend towards the latter), it realized something many entities that have tangled with the internet (and lost) haven't: if you don't give writers any ammo, they'll stop shooting.

Silence is a powerful weapon in the industry. The mad truth is, when it comes to gaming controversies, if you ignore it it will go away. This article is a fairly futile attempt to not let it, and to make sure our readers know that EA and Maxis never spoke to us, never responded to any of our questions, and never sent so much as a statement.

The corollary to the Streisand Effect is "the only way to win is not to play." Many entities fail to realize this. EA figured it out. All it had to do is sit back and let the internet entertain itself by pouncing on month's old statements and regurgitating the most recent missteps by the PR team. Many of those in the gaming journalism field still strive for accuracy and balance, but in doing so, they play right into the hands of recalcitrant developers and PR teams.

Silence is by far the most effective means of spreading silence. With a press so frequently under the spell of the belief that one must offer ‘balance’ to report anything, stories will simply go unreported if one side refuses to comment.

This is why some sites have devolved into little more than dumping grounds for press releases. This is all some companies are willing to throw the public's way, a strategy that buries controversy and ensures a "united front" of "journalism" that skews in a favorable direction. Walker says he has written this article to point out how EA froze the press out and got away with it, turning an antagonistic situation into nothing more than internet background noise. It sold over a million copies of an intentionally broken game and is now using its lack of interaction to pave over the ugliness in its recent past. Allowing a company to gloss over its failures with a finger over its lips is unacceptable. Here's Walker's advice to game journalists who are used to seeking comments before going to press.

[Seeking comment] effectively boils down to asking for permission to run a negative story about a company. Journalists need to pull their heads out of their arses and start having the integrity to run stories they know to be valid, and then asking the corporation for comment.

This doesn't mean publishing every wild rumour and running irresponsible articles based on little more than hearsay. What this does mean is that journalists should be confident enough in their own efforts (and research) to run unfavorable pieces without feeling a confirmation from the subject's PR team is needed before the post can be considered valid.

This is just as true with the non-gaming side of journalism. If the subject has refused to comment, state as much and move on. Silence is an effective weapon but it can be turned against those who wield it in hopes of muting criticism.